CCAR RESPONSA

Contemporary American Reform Responsa

78. Banks for Human Organs

QUESTION:

Is there any objection to the establishment of repositories for organs like kidneys, heart, liver,
cornea, and segments of skin, so that they can be used to help victims at the proper time? It is
now only possible to store organs for a short period. Would Reform Judaism object to long term
storage as it becomes feasible in order to save lives? Skin banks now help burn victims survive.
(Rabbi M. Beifield, Jr., Raleigh, NC)

ANSWER: Tradition has demanded the

quickest possible burial of the dead and considers it shameful to leave a body unburied overnight
unless the delay is for the honor of the dead (Deut. 21.23; San. 46b; M. K. 22a; Shulhan
Arukh Yoreh Deah 357.1). Burial according to the Talmudic discussion in Sanhedrinis an act of atonement and also prevents any dishonor to the corpse. The thought of atonement
through burial is based on the Biblical verse, "And he makes atonement for the land of his
people." In other words, burial in the earth will make atonement for the individual (Deut. 32.43).
In addition it prevents the ritual impurity of the priests (kohanim) who are to have no
contact with the dead (Lev. 21.2 ff; Shulhan Arukh Yoreh Deah 373.7 f; Greenwald,
Kol Bo Al Avelut, pp. 249 ff).

Burial of limbs is carried out by extension and

was known by Talmudic sources (Ket. 20b). However, almost all authorities who discuss burial of
limbs indicate that it is done only to prevent ritual impurity of the kohanim (M. Eduyot 63),
and that the other two motivations for general burial, i.e., atonement and the honor of the dead,
are not applicable (Jacob Reishel, Shevut Yaaqov, Vol. II, #101; Ezekiel Landau,
Noda Biyehudah, Vol. II, Yoreh Deah #209). Maimonides limited the possibility of ritual
impurity to a limb which had been completely preserved with skin, sinew, etc. and felt that other
sections of the human body like liver, stomach, or kidneys, did not transmit ritual uncleanliness
(Yad Hil. Tumat Hamet 2.3).

It is clear from this discussion as well as recent

responsa that there is no obligation to bury the vital internal organs as they do not transmit ritual
uncleanliness. That is true for traditional Jews, and of course, for us as Reform Jews. As the
kohanim have no special status among us, the precautions connected with them have no
significance for us.

There are no problems about the removal of the organs, however

we must now attempt to define the turning point when "independent life" has ceased and can
best do so by looking carefully at the traditional Jewish and modern medical criteria of death.
The traditional criteria was based on a lack of respiratory activity and heart beat (M.Yoma 8.5; Yad Hil. Shab. 2.19; Shulhan Arukh Orah Hayim 329.4). Lack of
respiration alone was considered conclusive if the individual lay as quietly as a stone (Hatam
Sofer Yoreh Deah #38). All of this was discussed at some length in connection with the
provision by the Shulhan Arukh, that an attempt might be made to save the child of a
woman dying in childbirth even on shabbat; a knife might be brought to make an incision
in the uterus in order to remove the fetus (Shulhan Arukh Yoreh Deah 339.1). If one
waited until death was absolutely certain, then the fetus would also be dead.

Absolute

certainty of death, according to the halakhic authorities of the last century, had occurred
when there had been no movement for at least fifteen minutes (Gesher Hayim I, 3, p. 48)
or an hour (Yismah Lev Yoreh Deah #9) after the halt of respiration and heart beat. On
the other hand, a recent Israeli physician, Jacob Levy, has stated that modern medical methods
permit other criteria, and the lack of blood pressure, as well as respiratory activity, should suffice
(Hamayan, Tamuz 57.31).

This discussion was important in connection with

the preparation for burial, as well as other matters. When death was certain, then the preparation
for burial must begin immediately (Hatam Sofer Yoreh Deah 338; Y. Z. Azulai,
Responsa Hayim Shaul II, #25). In ancient times, it was considered necessary to examine
the grave after a cave burial to be certain that the individual interred had actually died. This was
recommended for a period of three days (M. Semahot 8.1). This procedure was not
followed after Mishnaic times.

In the last years, it has been suggested that Jews

accept the criteria of death set by the ad hoc committee of the Harvard Medical School which
examined the definition of brain death in 1978 Journal of the American Medical
Association, Vol. 205, pp. 337 ff). They recommend three criteria: (1) lack of response to
external stimuli or to internal need, (2) absence of movement and breathing as observed by
physicians over a period of at least one hour, (3) absence of elicitable reflexes, and a fourth
criteria to confirm the other three, a flat or isoelectric electroencephalogram. They also
suggested that this examination be repeated after an interval of twenty-four hours. Several
Orthodox authorities have accepted these criteria while others have rejected them. Mosheh
Feinstein felt that they could be accepted along with turning off the respirator briefly in order to
see whether independent breathing was continuing (Igrot Mosheh Yoreh Deah II, #174).
Moses Tendler has gone somewhat further and has accepted the Harvard criteria Journal of
the American Medical Association, Vol. 328, #15, pp. 165.1 ff) . Although David Bleich
(Hapardes, Tevet 57.37; Jacob Levy, Hadarom, Nisan 57.31, Tishri 57.30;
Noam 5.30) vigorously rejected these criteria, we can see that though the question has
not been resolved by our Orthodox colleagues, some of them have certainly accepted the
recommendations of the Harvard Medical School committee. We are satisfied that these criteria
include those of the older tradition and comply with our concern that life has ended. Therefore,
when circulation and respiration only continue through mechanical means as established by the
above mentioned tests, then the suffering of the patient and his family may be permitted to
cease, as no "natural independent life" functions have been sustained.

In addition to

this, we may be well guided by the statements on medical ethics made by the Committee of the
Federation of Jewish Philanthropies of New York. They have suggested that the following criteria
be used:

"1. Acceptance of total cessation of brain-stem function as a criterion of

death is in keeping with halakhic standards for determining death, provided the Harvard
Criteria are met.

"2. The Committee expressed confidence in the medical profession's

ability to provide needed safeguards and to set proper standards.

"3. Our support of

this new legislation is necessary to correct the lack of uniformity presently found among hospitals
and staff in determining the fact or moment of death. This legislation is, therefore, viewed as a
'tightening up' of standards.

"4. The neurological definition of death serves an

important function in view of the widespread introduction of respiratory-assist technology in
hospitals.

"5. Radiological methods for determining cessation of blood flow to the

by Solomon B. Freehof (W. Jacob,American Reform Responsa #86). A transplant lies
outside the scope of what tradition has normally understood as hanaah; this potential
objection does not exist.

As we view the traditional reluctance in this matter, we feel

that the desire to help a fellow human being, especially in these dire circumstances of piquah
nefesh is of primary significance. From our liberal understanding of the halakhah, this
is the decisive factor. The act of donating organs does honor to the deceased; many of those
about to die would gladly forego any other honor and donate organs for this purpose (Kid. 32;
Shulhan Arukh Yoreh Deah 364.1, 368.1; Isserles Responsa #327). As the
donation of an organ will help to save the life of another human being, storage until the time of
proper use presents no problem. Progress in the future may raise new issues of use and lead us
to reexamine this matter. At the present time we should insist that storage and handling be done
with appropriate respect and that the disposal organs which are not used be done with
reverence.